House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

GENERAL OUTLINE

1. The declared areas provisions in the Criminal Code Act 1995 (Criminal Code) are an important part of the Australian Government's efforts to stop the flow of foreign fighters, and the risk they pose to Australia on their return.

2. Where an area is declared by the Minister for Foreign Affairs, it is an offence to enter, or remain in that area without a legitimate reason. A declared area is a place where terrorist organisations are engaging in hostile activity. There are very few legitimate reasons for entering such an area. The offence recognises this by providing a carefully targeted range of exceptions.

3. This Bill would extend for a further three years the declared areas offence in 119.2 of the Criminal Code Act 1995 (Criminal Code) that is scheduled to sunset on 7 September 2024.

4. The declared areas offence fulfils a crucial role in the disruption and prosecution of returning foreign terrorist fighters and their associates and allows for the prosecution of suspected terrorists in circumstances where it is challenging to collect evidence relating to the intention elements of more serious terrorism offences, including in conflict zones.

5. While there have only been two declarations made (Mosul district, Ninewa province in Iraq on 2 March 2018 and Al-Raqqa province in Syria on 4 December 2014), and four Australians charged under the declared areas offence, this is not an indication of a lack of utility. The limited number of areas that have been declared, and the limited use of the offence to date are indicative of its exceptional nature and judicious use of this power and associated offence.

6. There was a significant reduction in Australians travelling to the Syria/Iraq conflict zone after the declarations were made. The provisions are likely to have contributed to discouraging people who might otherwise have considered entering Mosul and al-Raqqa while the respective declarations were in effect, and discouraging parents from taking their children into those areas.

7. Declarations have only been used in the context of the Islamic State, as this has been the only conflict since the commencement of the declared areas framework which warranted the use of the power. The framework is, however, designed in such a way that it would be capable of being used in response to future conflicts. Having this well considered and understood framework available to be utilised in response to a future crisis will greatly assist the Government's ability to rapidly respond in an appropriate and measured manner.

8. A three-year extension of section 119.2 would be consistent with the previous two extensions made in 2018 and 2021 in accordance with recommendations made by the PJCIS.

9. The Bill would also provide that section 119.3 – the provision under which the Minister for Foreign Affairs can declare an area for the purpose of the offence in section 119.2 – also ceases to have effect on 7 September 2027. This reflects that there is no utility in empowering the Minister to declare an area, if there is no mechanism in place to enforce the declaration.

10. The Bill would additionally amend the Intelligence Services Act 2001 to remove now obsolete paragraph 29(1)(bbaa) which provides for the PJCIS to review the declared areas provisions (sections 119.2 and 119.3) before 7 January 2024.

11. The Intelligence Services Legislation Amendment Bill 2023, which is currently before the Parliament would empower the PJCIS to review these provisions before they sunset, ensuring that due consideration is given to the continued utility of the provisions.

FINANCIAL IMPACT

12. The amendments in this Bill will have no financial impact on Government expenditure or revenue.